Donald Richard Lowe - Page 4

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          The agreement does not contain a child support provision for                
          Michael.  The agreement further states that petitioner and Ms.              
          Lowe would each have joint custody of Michael, with primary                 
          physical custody to Ms. Lowe.                                               
               During the 2000 taxable year, Michael was in the physical              
          custody of Ms. Lowe, and in accordance with the agreement,                  
          petitioner made payments totaling $6,500 to her (the payments).             
               On his timely filed 2000 Federal income tax return,                    
          petitioner claimed an alimony deduction for the payments.  In the           
          notice of deficiency, respondent disallowed the alimony deduction           
          upon the ground that the payments represent nondeductible child             
          support.                                                                    
          Discussion1                                                                 
               Section 215(a) allows an individual a deduction for alimony            
          paid during the taxable year.  In general, a payment constitutes            
          alimony within the meaning of section 215 if the payment is made            
          in cash and meets the following four criteria:  (1) Such payment            
          is received by (or on behalf of) a spouse under a divorce or                
          separation instrument, (2) the divorce or separation instrument             
          does not designate such payment as a payment which is not                   
          includable in gross income under this section and not allowable             
          as a deduction under section 215, (3) in the case of an                     


               1  Because there are no disputes with respect to any factual           
          issues in this case, we need not consider the application of sec.           
          7491(a).  Higbee v. Commissioner, 116 T.C. 438 (2001).                      




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